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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Juan R. Nieves, Jr. Summerfield, Florida ) ) ) ) ) File
No.: EB-FIELDSCR-13-00009579 NAL/Acct. No.: 201432700001 FRN: 0023056757
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 24, 2013 Released: October 25, 2013
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Juan R. Nieves, Jr. apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended (Act),^ by
operating an unlicensed radio transmitter on the frequency 97.7 MHz in
Summerfield, Florida. We conclude that Mr. Nieves is apparently liable
for a forfeiture in the amount of fifteen thousand dollars ($15,000).
II. BACKGROUND
2. In response to a complaint about a possible unlicensed station
operating on 97.7 MHz, agents from the Enforcement Bureau's Tampa
Office (Tampa Office) used direction-finding techniques to locate the
source of radio frequency transmissions on the frequency 97.7 MHz on
three separate days (May 24, May 30, and June 14, 2013) to an FM
transmitting antenna located at a residence in Summerfield, Florida.
On each of those three days, the agents took field strength
measurements of the station's signal and determined that the signals
on 97.7 MHz exceeded the limits for operation under Part 15 of the
Commission's rules (Rules),^ and therefore required a license. The
agents consulted the Commission's records and confirmed that no
authorization had been issued to Mr. Nieves, or to anyone else, for
the operation of an FM broadcast station in Summerfield, Florida.
3. On June 25, 2013, agents from the Tampa Office again used
direction-finding techniques to confirm that the unlicensed station on
97.7 MHz was still in operation from the same location in Summerfield,
Florida identified on May 24, May 30, and June 14, 2013. Agents from
the Tampa Office inspected the unlicensed radio station and
interviewed Mr. Nieves. He admitted renting the residence housing the
station, owning the transmitter, and being the sole responsible party
for the unlicensed station. He claimed to have operated the station on
97.7 MHz for over a year. Mr. Nieves also stated that he had been in
the broadcast industry for many years, was a former officer of a low
power station in Summerfield, Florida, and knew he needed a license to
operate.^
III. DISCUSSION
4. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty.^ Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law.^ The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act,^ and
the Commission has so interpreted the term in the Section 503(b)
context.^ The Commission may also assess a forfeiture for violations
that are merely repeated, and not willful.^ The term "repeated" means
the commission or omission of such act more than once or for more than
one day.^
A. Unlicensed Broadcast Operations
5. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States, except under and in accordance with
the Act and with a license granted under the provisions of the Act.^
On May 24, May 30, June 14, and June 25, 2013, agents from the Tampa
Office determined that an unlicensed radio station on the frequency
97.7 MHz was operating from a residence in Summerfield, Florida. On
June 25, 2013, agents from the Tampa Office inspected the unlicensed
station and interviewed Mr. Nieves, who admitted to operating the
station for over a year. A review of the Commission's records revealed
that no license or authorization was issued to Mr. Nieves or to anyone
else to operate a radio station on 97.7 MHz at this location. Because
Mr. Nieves consciously operated the station on more than one day, the
apparent violation of the Act was both willful and repeated. Based on
the evidence before us, we find that Mr. Nieves apparently willfully
and repeatedly violated Section 301 of the Act by operating radio
transmission equipment without the required Commission authorization.
B. Proposed Forfeiture
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization is $10,000.^ In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and other such matters as justice
may require.^ In doing so, we find that the violations here warrant a
proposed forfeiture above the base amount. The record evidence in this
case shows that Mr. Nieves was an officer of a low power FM station,
and as such was familiar with the Commission's requirements. Mr.
Nieves admitted that he had been in the broadcast industry for many
years and knew that he was operating the radio station without a
license. Nevertheless, Mr. Nieves operated the unlicensed station for
over a year, in deliberate disregard for the Act and the Commission's
requirements. Thus, we find that an upward adjustment of $5,000 in the
forfeiture amount is warranted.^ Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Mr. Nieves is apparently liable for a
forfeiture in the amount of $15,000.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Juan R. Nieves, Jr.
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of Section
301 of the Act.^
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Juan R.
Nieves, Jr. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account Number
and FRN referenced above. Juan R. Nieves, Jr. shall also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
10. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554.^ If you have questions
regarding payment procedures, please contact the Financial Operations
Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
11. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Tampa Office, 4010 W. Boy Scout Blvd., Suite 425,
Tampa, FL 33607-5744, and include the NAL/Acct. No. referenced in the
caption. Juan R. Nieves also shall e-mail the written response to
SCR-Response@fcc.gov.
12. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail to Juan R. Nieves, Jr. at his address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
^ 47 C.F.R. S 301.
^ Part 15 of the Rules sets out the conditions and technical requirements
under which certain radio transmission devices may be used without a
license. In relevant part, Section 15.239 of the Rules provides that
non-licensed broadcasting in the 88-108 MHz band is permitted only if the
field strength of the transmission does not exceed 250 mV/m at three
meters. 47 C.F.R. S 15.239.
^ Mr. Nieves was an "Officer" of Station WJRN-LP in Summerfield, Florida.
See File No. BON-20040825ACE.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
^ See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388, para. 5 (1991), recons. denied, 7 FCC Rcd
3454 (1992).
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
^ Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362, para. 9.
^ 47 U.S.C. S 301.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ See, e.g., Albert R. Knighten, Jr., Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 6073 (Enf. Bur. 2012) (proposing $5,000 or 50
percent upward adjustment because violator repeatedly operated an
unlicensed station despite knowing that the station required a license);
Robert Brown, Memorandum Opinion and Order, 27 FCC Rcd 6975 (Enf. Bur.
2012) (upholding $5,000 or 50 percent upward adjustment because violator
received one prior warning that his actions violated Section 301 of the
Act); Loyd Morris, Memorandum Opinion and Order, 27 FCC Rcd 6979 (Enf.
Bur. 2012) (upholding $5,000 or 50 percent upward adjustment because
violator received one prior warning that his actions violated Section 301
of the Act).
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80.
^ An FCC Form 159 and detailed instructions for completing the form may
be obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
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Federal Communications Commission DA 13-2066
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Federal Communications Commission DA 13-2066